has the treatment of confidential information changed since the Internet
A: While confidential information is as old
as the first secret, the computer revolution of the last couple of decades has
raised many questions about how the law addresses ownership and use of
confidential information. Life-changing new technology has forced us to
determine how the old legal rules apply to new situations. Today, people have
easier access to more information than ever before, and most of that
information exists in a highly mobile form. As a result, it is much more
difficult to protect confidential information today than in the past, so it is
more important than ever to take appropriate steps to protect information and avoid
the legal problems that result from disclosures of confidential information.
kinds of confidential information are affected by the technological changes?
A: Anything that a person or company might
not want somebody else to know has been affected, including such important
categories of confidential information as business trade secrets, medical
records and student records. Since virtually all information is created and/or
stored electronically, anything that a company or an individual might like to
keep confidential is subject to new challenges raised by Internet accessibility.
is a trade secret?
A: A trade secret is a form of confidential
information recognized by statute in Ohio (and all states in one form or
another). In short, trade secrets have value because of the very fact that they
are kept confidential. For example, the owner of the formula for a soft drink
will go to great lengths to make sure that formula is kept secret, since it is
the crown jewel of the business. If the formula were to become known by those
outside the business, the company would stand to lose a lot of money because
the recipe for creating the drink’s distinctive taste would be available to its
competitors. That is a trade secret.
has technology affected trade secrets law?
A: Because the formula referenced above
almost certainly exists electronically, it could, in a split second, be emailed
or posted on the Internet and become available to millions of people. Such a
disclosure could cripple the business. For example, the formula could
inadvertently be shared by an employee who leaves a mobile device such as a
laptop, an iPhone or a flash drive in an insecure location.
light of these new challenges, the owner of information involving trade secrets
must take appropriate steps to protect the information. In particular, the owner
of the information must determine how to limit the physical locations of the
information in all forms, electronic and otherwise.
as an employee of a company, I’ve developed a list of LinkedIn contacts or
Twitter followers, who owns that contact list?
A: If the list has been developed as part
of your employment, then the employer will likely want to retain ownership and
has strong grounds for doing so. The more complicated situations involve
situations where some of the contacts relate to your employment and some do
not, or where some of the contacts pre-date your employment. In order to avoid
future misunderstandings, it is wise for both sides to specifically spell out
as much as possible what each expects regarding ownership of contact
information developed through the Internet.
I have business contact information on my personal smartphone, don’t I own it?
A: Not necessarily. This is the “BYOD”
(bring your own device) issue that is currently receiving attention among
employers. An employer may maintain trade secret protection for information
located on an employee’s personal device. Both the employer and the employee
should, therefore, plan for how to handle the situation where the device is
lost. For example, there are programs that enable remotely “wiping” the device
of data if it cannot be located.
an employee, you should not assume you have free rein to use job-related
information on your smartphone. Such an assumption could lead to unwanted legal
problems for you.
This “Law You Can Use” column was
provided by the Ohio State Bar Association. It was prepared by attorney Bill Nolan of the Columbus office of Barnes
& Thornburg LLP. Articles appearing in this column are intended to provide
broad, general information about the law. Before applying this information to a
specific legal problem, readers are urged to seek advice from an attorney.
Labels: confidential information, Internet, LinkedIn, social media, technology, Twitter